McClellanv. McGary

[Cite as McClellanv. McGary, 2020-Ohio-1109.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MONROE COUNTY

GARY MCCLELLAN ET AL.,

Plaintiffs-Appellees,

v.

MARIAN MCGARY AKA MARION MCGARY ET AL.,

Defendants-Appellants.

OPINION AND JUDGMENT ENTRY
Case No. 19 MO 0018

Civil Appeal from the
Court of Common Pleas of Monroe County, Ohio
Case No. 2017-411

BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.

JUDGMENT:
Affirmed.

Atty. Jason Yoss, and Atty. Ryan Regel, Yoss Law Office, 122 North Main Street,
Woodsfield, Ohio 43793, for Plaintiffs-Appellees and

Atty. Andrew Lycans, Critchfield, Critchfield & Johnston, 225 North Market Street, P. O.
Box 599, Wooster, Ohio 44691, for Defendants- Appellants.
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Dated: March 23, 2020

D’APOLITO, J.

{¶1} Defendants-Appellants, Marian McGary aka Marion McGary, Larry McGary,
Richard Clegg, Donna L. Craig, Terry L. Craig, Karen McKelvey, Kenneth McKelvey,
Robert D. Clegg, Connie Waltz, Margaret H. Clegg, Marcia L. Clegg, Cindy Gordon, Paul
E. Gordon aka Paul E. Gordon, Jr., Jeff Clegg, Roger K. Rufener, and Janet Lee Deal
(“Appellants” or “McCaslin heirs”), the purported mineral interest owners, appeal the
decision of the Monroe County Court of Common Pleas granting the motion for summary
judgment filed by Plaintiffs-Appellees, Gary and Jerry McClellan (“Appellees”), the surface
owners, and denying Appellants’ cross motion for summary judgment, in this action for
declaratory judgment and to quiet title, filed pursuant to the Marketable Title Act (“MTA”)
and the Dormant Mineral Act (“DMA”). The trial court found that a mineral interest
exception in a 1921 warranty deed was extinguished by operation of the MTA.
{¶2} In their first assignment of error, Appellants assert that the trial court erred
in concluding that a warranty deed recorded in 1974 was Appellees’ root of title, because
it contains a specific reference to an oil and gas exception in a 1947 deed. In support of
their assertion, Appellants cite our decisions in four cases, Miller v. Mellott, 7th Dist.
Monroe No. 18 MO 0004, 2019-Ohio-504, 30 N.E.3d 1021, decision clarified on
reconsideration Miller v. Mellot, 7th Dist. Monroe No. 18 MO 0004, 2019-Ohio-4084,
reconsideration denied Miller v. Mellot, 7th Dist. Monroe No. 18 MO 0004, 2020-Ohio-
237, appeal allowed, Miller v. Mellott, 2020-Ohio-313, and Hickman v. Consolidated Coal
Co., 7th Dist. Columbiana No. 17 CO 0012, 2019-Ohio-492, which cited with favor
Christman v. Wells, 7th Dist. Monroe No. 539, 1981 WL 4773, (Aug. 28, 1981) and
Holdren v. Mann, 7th Dist. Monroe No. 592, 1985 WL 10385, *2 (Feb. 13, 1985).
Christman and Holdren stood for the proposition that a root of title must contain a fee
simple title free of any oil and gas exception and reservation.
{¶3} However, after briefing was complete in the above-captioned appeal, we
granted motions for reconsideration in Miller and Hickman, and recognized that Christman
and Holdren were no longer good law based upon the Ohio Supreme Court’s decision in
Blackstone v. Moore, 155 Ohio St.3d 448, 2018-Ohio-4959, 122 N.E.3d 132. See Miller

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v. Mellott, 7th Dist. Monroe No. 18 MO 0004, 2019-Ohio-4084 and Hickman v.
Consolidation Coal Co., 7th Dist. Columbiana No. 17 CO 0012, 2019-Ohio-4077. In
Blackstone, the root of title contained a specific reference to the particular mineral interest
at issue in that case. Based on intervening case law from this District, we find that the
trial court did not err in concluding that the 1974 deed is Appellees’ root of title.
{¶4} In their second assignment of error, Appellants contend that the specific
provisions of the Dormant Mineral Act, R.C. 5301.56, prevail over the general provisions
of the MTA. For the reasons previously set forth in West v. Bode, 7th Dist. Monroe No.
18 MO 0017, 2019-Ohio-4092, appeal allowed, 157 Ohio St.3d 1535, 2020-Ohio-122
(2020), we find that Appellants’ second assignment of error is meritless. Therefore, the
judgment entry of the trial court extinguishing the mineral interest in this case pursuant to
the MTA is affirmed.

STANDARD OF REVIEW

{¶5} This appeal is from a trial court judgment resolving a motion for summary
judgment. An appellate court conducts a de novo review of a trial court’s decision to grant
summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C).
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before
summary judgment can be granted, the trial court must determine that: (1) no genuine
issue as to any material fact remains to be litigated, (2) the moving party is entitled to
judgment as a matter of law, (3) it appears from the evidence that reasonable minds can
come to but one conclusion, and viewing the evidence most favorably in favor of the party
against whom the motion for summary judgment is made, the conclusion is adverse to
that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
Whether a fact is “material” depends on the substantive law of the claim being litigated.
Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995).
{¶6} “[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving party’s
claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264

Case No. 19 MO 0018
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(1996). If the moving party carries its burden, the nonmoving party has a reciprocal
burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at
293. In other words, when presented with a properly supported motion for summary
judgment, the nonmoving party must produce some evidence to suggest that a
reasonable factfinder could rule in that party’s favor. Doe v. Skaggs, 7th Dist. Belmont
No. 18 BE 0005, 2018-Ohio-5402, ¶ 11.
{¶7} The evidentiary materials to support a motion for summary judgment are
listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact that
have been filed in the case. In resolving the motion, the court views the evidence in a
light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327.

FACTS AND PROCEDURAL HISTORY

{¶8} Appellees are the undisputed owners of the surface rights to approximately
74.94 acres in Monroe County, Ohio (“Property”), which they acquired by warranty deed
on November 18, 2005. On December 13, 2017, Appellees filed this declaratory
judgment action against Appellants and Eileen E. Beaver nka Eileen E. Cartwright,
Beverly Beaver, Sandra K. Hopton nka Sandra K. Bottenfield, Bonnie L. Hopton nka
Bonnie L. Carter, Richard J. Ashcroft, Dale A. Aschcroft, David L. Ashcroft, Edward J.
Ashcroft, Robert J. Kiedaisch aka Robert J. Furedy, and Marlene Kiedaisch (“Kiedaisch
heirs”), all purported mineral interest owners in the Property.
{¶9} Appellees sought a declaration that any mineral interest in the Property held
by the McCaslin and Kiedaisch heirs had been extinguished pursuant to the MTA; a
declaration that the Kiedaisch interest was predicated upon a repetition of the language
creating the McCaslin interest, which did not constitute a new exception; a declaration
that the mineral interests had been deemed abandoned pursuant to the 1989 DMA; a
declaration that the Ohio Supreme Court’s decision in Corban v. Chesapeake Exploration,
L.L.C., 149 Ohio St. 3d 512, 518 (2016) violated Appellees' constitutional rights; and an
order quieting title to the mineral interests associated with the Property.
{¶10} Appellants filed an Answer and Counterclaim, seeking a declaration that the
McCaslin interest had not been abandoned under MTA, and a declaration that the

Case No. 19 MO 0018
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mineral-specific provisions of the DMA prevail over the general property interest
provisions of the MTA. They further sought damages for slander of title and an order
quieting title as to the McCaslin mineral interest.
{¶11} Appellees and the Kiedaisch heirs filed a Notice of Settlement on May 14,
2019. Appellants and Appellees filed cross-motions for summary judgment. The following
relevant facts are a part of the record on appeal.
{¶12} On April 20, 1901, a handwritten warranty deed was recorded in which
Margaret T. Williams transferred the Property to Robert F. McCaslin and Irene McCaslin
(“Williams deed”). The deed included the following exception: “The grantor in this deed
excepts 1/2 of the 1/8 of the oil produced from the above described premises during her
natural lifetime * * * .”
{¶13} On March 21, 1921, a warranty deed was recorded transferring the Property
from the McCaslins to John Keidaisch (“McCaslin deed”). The deed included the following
exceptions and provision (“McCaslin exception”):

Exception: Excepting herefrom the One half 1/2 of the royalty of Oil
underlying above described premises unto Margaret T. Williams for and
during her natural life as set forth in a deed made by Margaret T. Williams
to Robert F. McCaslin and recorded in Volume 58, page 612-613 in the
Record of Deeds of said County.

Exception: Said grantor hereby reserves unto himself, assigns and heirs the
one half of the one half or 1/4 of the royalty of oil and 1/2 of the gas
underlying said premises in fee.

Provision: It is provided and understood that upon the death of Margaret T.
Williams, the above one half royalty held by her, shall be equally divided
between said grantor and grantee herein or their heirs or assigns, to wit, 1/4
to grantor and 1/4 to grantee or their respective heirs or assigns.

{¶14} On August 1, 1942, an affidavit of transfer was recorded noting the transfer
of John Kiedaisch’s interest in the Property to his heirs based upon intestate succession.
That same day, a warranty deed was recorded, which transferred the Property from the

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recipients under the certificate of transfer to H.J. Walters. The deed contained a repetition
of the McCaslin exception, that is, a verbatim recitation of the exception without any
reference to the McCaslin deed, only the Williams deed.
{¶15} On November 3, 1947, a warranty deed was recorded at Monroe County
Deed Record Volume 120, Page 607, which transfered the Property from H.J. Walters
and his wife Sylvia to Donoto and Lola Finalli. The deed included the following exception
( “Walters exception”):

The grantors herein except all the oil and gas rights together with all leasing
rights for oil and gas rights together with all leasing rights for oil and gas
and the right at any time to go on said premises for drilling purposes. The
grantees herein are to receive all rentals and the grantors are not to lease
said premises for less than fifty cents ($.50) an acre.

{¶16} On November 15, 1960, a warranty deed was recorded transferring the
Property from Lola Finalli to Donoto Finalli. The deed excepted “oil and gas rights and
leasing rights for oil and gas heretofore reserved (See Vol. 120, Page 607 of the Deed
Records of Monroe County, Ohio.)”
{¶17} On March 3, 1972, a certificate of transfer was recorded noting the transfer
of Donato [sic] Finalli’s interest in the Property to his heirs based upon intestate
succession; and excepted “all oil and gas rights and leasing rights for oil and gas
heretofore reserved. (See reservations Volume 120 at Page 607 of the Deed Records of
Monroe County, Ohio.)”
{¶18} On August 16, 1973, a warranty deed was recorded transferring the
Property from the Finalli heirs to Arthur and Verla Lude. The deed excepted “all oil and
gas rights and leasing rights for oil and gas heretofore reserved. (See reservations
Volume 120 at Page 607 of the Deed Records of Monroe County, Ohio.)”
{¶19} On January 31, 1974, a joint and survivorship deed was recorded
transferring the Property from the Ludes to Elden and Inez McClellan. The deed excepted
“all oil and gas rights and leasing rights for oil and gas heretofore reserved. (See
reservations Volume 120 at Page 607 of the Deed Records of Monroe County, Ohio.)”
The trial court identified the 1974 deed as Appellees’ root of title deed.

Case No. 19 MO 0018
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{¶20} On November 18, 2005, Inez McClellan recorded an affidavit stating that
Elden McClellan died on October 4, 1976. On November 18, 2005, a warranty deed was
recorded transferring the Property from Inez McClellan to Appellees, but reserving a life
estate in Inez McClellan. A termination of life estate was subsequently recorded noting
that Inez McClellan died on November 28, 2015.
{¶21} On February 14, 2006, Appellees recorded an Affidavit pursuant to R.C.
5301.252, captioned “Affidavits on facts relating to title,” in which they asserted that the
McCaslin interest had been abandoned, and vested in them as the surface owners
pursuant to the 1989 DMA. On December 8, 2012, Appellees, Inez McClellan, and Cindy
McClellan entered into an oil and gas lease with Eclipse Resources I, LP.
{¶22} On January 17, 2017, Appellees and Cindy McClellan recorded an Affidavit
of Abandonment pursuant to R.C. 5301.56. The Affidavit of Abandonment indicated that
notice was provided to the McCaslin heirs during a period beginning on December 5,
2016 and ending on December 15, 2016. On February 1, 2017, Appellants recorded an
Affidavit and Claim of Preservation of Mineral Interest, pursuant to R.C. 5301.56(C) and
5301.52. The Affidavit was filed within 60 days after the first of the McCaslin heirs was
served with notice. In the fall of 2017, the McCaslin Heirs signed oil and gas leases with
Eclipse Resources I, LP.
{¶23} On January 12, 2017, Appellees and Cindy McClellan recorded an Affidavit
of Abandonment pursuant to R.C. 5301.56 with regard to the Walters exception. The
Affidavit indicated that notice was provided to the Walters heirs by publication on
December 8, 2016. On February 7, 2017, the McClellans recorded a Notice of Failure to
File pursuant to O.R.C. 5301.56 with regard to the Walters exception. On March 16,
2017, the Walters heirs recorded an Affidavit and Notice of Claim Preservation of Mineral
Interest.
{¶24} The trial court granted Appellees’ motion for summary judgment and denied
Appellants’ cross-motion on August 12, 2019. The trial court found that the 1974 deed,
which contained a reference to the Walters exception, was the root of title. The trial court
further concluded that the muniments of the chain of title contained no specific reference
to the McCaslin exception, and that no other provision of the MTA applied to prohibit
extinguishment of the McCaslin exception. The judgment entry reads, in pertinent part,

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“Judgment in favor of the Plaintiffs shall further be noted by the recording of said
Judgment Entry on the McCaslin Deed * * * , and the Root of Title Deed * * * .”
{¶25} Despite the fact that the trial court opined that the Walters exception was
deemed abandoned as a result of Appellants’ filing of the Notice of Failure to File pursuant
to the DMA, the trial court did not enter an order quieting title. The judgment entry reads,
in pertinent part, “[t]he Court further finds that there is no just reason for delay, and that
this ‘Judgment Entry Incorporating Findings of Fact and Conclusions of Law’ is a final
appealable order, as defined under Civil Rule 54.” This timely appeal followed.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN HOLDING THAT APPELLEES’ ROOT OF
TITLE IS A DEED WHICH EXCEPTED ALL OIL AND GAS FROM THE
CONVEYANCE.

{¶26} The MTA was enacted to “simplify[ ] and facilitat[e] land title transactions by
allowing persons to rely on a record chain of title.” R.C. 5301.55. Thus, the Act provides
that a person “who has an unbroken chain of title of record to any interest in land for forty
years or more, has a marketable record title to such interest.” R.C. 5301.48. The
marketable record title “operates to extinguish such interests and claims, existing prior to
the effective date of the root of title.” R.C. 5301.47(A).
{¶27} The MTA facilitates title transactions, as the record marketable title “shall
be taken by any person dealing with the land free and clear of all interests, claims, or
charges whatsoever, the existence of which depends upon any act, transaction, event, or
omission that occurred prior to the effective date of the root of title.” R.C. 5301.50. A “root
of title” is “that conveyance or other title transaction in the chain of title of a person,
purporting to create the interest claimed by the person, upon which he relies as a basis
for the marketability of his title, and which was the most recent to be recorded as of a date
forty years prior to the time when marketability is being determined.” R.C. 5301.47(E).
{¶28} We recently observed in Senterra Ltd. v. Winland, 7th Dist. Belmont No. 18
BE 0051, 2019-Ohio-4387, ¶ 52, modified on reconsideration Senterra Ltd. v. Winland,
7th Dist. Belmont No. 18 BE 0051, 2019-Ohio-5458, that a “root of title” has two elements

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– one temporal and the other substantive, and both elements must exist to be a root of
title:

The temporal element for a “root of title” is a title transaction that is at least
40 years preceding the date when marketability is being determined. Once
that title transaction is found, it must be determined whether that title
transaction meets the second element. This substantive element requires
the title transaction to purport “to create the interest claimed by such person,
upon which he relies as a basis for the marketability of his title.” R.C.
5301.47(E). A “root of title” cannot be the initial severance deed of the
interest the person is seeking to have extinguished. This is because record
marketable title extinguishes interests and claims existing prior to the
effective date of the root of title, not when the interest and claims were
created in the “root of title.” R.C. 5301.47(A).

Id. at ¶ 53.

{¶29} The Ohio Supreme Court has recognized that the desire to facilitate title
transactions is balanced against the need to protect interests that predate the root of title
in the MTA. To that end, the MTA provides that the marketable record title is subject to
interests inherent in the record chain of title, “provided that a general reference * * * to * *
* interests created prior to the root of title shall not be sufficient to preserve them, unless
specific identification be made therein of a recorded title transaction which creates such
* * * interest.” R.C. 5301.49(A).
{¶30} Appellants contend that the trial court predicated its conclusion that their
mineral interest was extinguished by operation of the MTA on the wrong deed, citing two
of our 2019 decisions, Miller and Soucik, supra, which relied on two earlier decisions from
the 1980s, Christman and Holdren, supra. In Christman, supra, the purported root of title
was a 1926 deed, which read, in pertinent part, “[e]xcepting and reserving the one-half oil
and gas royalty being 1/16th of the oil produced and 1/2 of the money received from the
sale of gas.” Christman, supra, at *1. The panel found that the 1926 deed contained a
repetition of the reservation of royalties from the 1925 severance deed.

Case No. 19 MO 0018
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{¶31} The panel held that “‘[t]he interest claimed’ by the [surface holders] is an
interest free of [the] reservation of royalties, a fee simple.” Id. As a consequence, the
panel concluded that the 1926 deed was not the root of title “because such instrument
contains, within it, a repetition of the original exception of all the oil and gas.” The panel
reasoned that the 1926 deed could not be the root of title “because it does not contain a
fee simple title free of any such oil and gas exception and reservation.” Id.
{¶32} After disqualifying the 1926 deed, the panel continued back through the
deed history and identified a 1923 deed, which transferred a fee simple, as the surface
owner’s root of title. Because the 1925 severance deed was a title transaction in
Christmans’ chain, based on the 1923 root, the panel concluded that the MTA did not
extinguish the prior mineral interest.
{¶33} Likewise, in Holdren, supra, the panel recognized that the purported root of
title contained a repetition of an oil and gas exception from the prior severance deed.
Because the purported root did not convey “a fee simple, free of any such oil and gas
exception,” the panel continued back through the deed history and identified an 1881
deed, which transferred a fee simple, as the surface holders’ root of title. As a result, the
severance deed was a title transaction in Holdrens’ chain, based on the 1881 root, the
panel, with one judge dissenting, concluded that the MTA did not extinguish the prior
interest. In his dissent, Judge O’Neill advocated a specific-analysis test, and concluded
that the repetition was not specific enough to prevent extinguishment by operation of the
MTA. Id. at *3-4.
{¶34} However, in 2018, the Supreme Court of Ohio issued its decision in
Blackstone, supra, in which the Court concluded that a specific reference to a prior
mineral interest in the root of title deed was sufficient to preserve the interest. The root
of title deed in Blackstone read, in pertinent part, “[e]xcepting the one-half interest in oil
and gas royalty previously excepted by Nick Kuhn, their [sic] heirs and assigns.” The
Ohio Supreme Court concluded that the reference was sufficiently specific to preserve
the Kuhn interest.
{¶35} As a consequence, we have repeatedly recognized that Christman and
Holdren are no longer good law following the Ohio Supreme Court’s decision in
Blackstone. See Miller, supra, Hickman, supra, Senterra, supra. Further, in Senterra, we

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observed that “the ‘root of title’ can contain a repetition of a reservation; the deed must
merely account for the interest the person is claiming to have record marketable title to
and not be the severance deed.” Id.
{¶36} Based on intervening case law from this District, we find that the trial court
correctly identified the 1974 deed as Appellees’ root of title. Although the deed contains
a prior deed reference, it accounts for the interest in which Appellees claimed record
marketable title (the minerals) and is not the severance deed.
{¶37} Next, Appellants argue that the mineral interest owner should not have any
impact on the identification of the root of title. They argue that the 1974 deed would not
be the root of title for the Walters heirs. To the contrary, if the 1974 deed fulfilled the
temporal element, it would also fulfill the substantive element, that it purports to create
the interest claimed by Appellees, upon which they rely as a basis for the marketability of
their title. However, the 1974 root of title would not extinguish the Walters’ mineral
interest, because it contains a specific reference to that interest. Consequently,
Appellants’ second argument has no merit.
{¶38} For the foregoing reasons, we find that the trial court did not err in
concluding that the McCaslin exception was extinguished by operation of the MTA. We
further find that Appellants’ first assignment of error is meritless.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN HOLDING THAT THE SPECIFIC
PROVISIONS OF THE MARKETABLE TITLE ACT GOVERNING
ABANDONMENT OF MINERAL INTERESTS (KNOWN AS THE
DORMANT MINERAL ACT) DO NOT CONTROL OVER THE
PROVISIONS OF THE MARKETABLE TITLE ACT GOVERNING
ABANDONMENT OR PROPERTY INTERESTS IN GENERAL.

{¶39} For the reasons stated in West v. Bode, supra, we find that both the MTA
and the DMA apply to mineral interests.

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CONCLUSION

{¶40} In summary, we find that the trial court did not err in applying the MTA to
the mineral interest at issue in this case or in finding that the 1974 deed was the root of
title. For the foregoing reasons, the judgment entry of the trial court is affirmed.

Donofrio, J., concurs.

Robb, J., concurs.

Case No. 19 MO 0018
[Cite as McClellanv. McGary, 2020-Ohio-1109.]

For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Monroe County, Ohio, is affirmed. Costs to be taxed
against the Appellants.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.